19 May 2011

The claimants in this case were school staff (Council employees) and the Appeal Tribunal had to determine if they were in the same employment as other council staff for purposes of the Equal Pay Act.

Daniell Barnett’s Law Bulletin reports:

The fact that the school governors (who are not the employer) set the claimants’ terms and conditions (albeit on council recommendations) did not mean that the claimants were not under a single source of terms and conditions with other council staff, meaning that the council staff were potential comparators.

The EAT said that 'the same employment' should be construed naturally, but observed that with sufficient evidence of departures by governors from Council recommendations, the outcome might differ. The EAT suggested that a material factor defence might arise for an employer in such situations.

In mass Equal Pay litigation, with mistakes in job titles being "inevitable", Tribunals should be very ready to accept amendments to correct misdescriptions of job titles, subject to considerations of jurisdiction and prejudice to the employer.

A failure to properly state the basis of a grievance under the (now-repealed) Modified Grievance Procedure will not mean a claim is barred under S32 EA 2002 if a Collective Grievance under Regulation 9 of the 2004 Dispute Resolution Regulations covers that grievance. The EAT set a low threshold for complying with the Collective Grievance provisions by a Union or appropriate representative, allowing for compliance by 'happy accident'.

The EAT also held that agreeing to follow the Modified Procedure is binding, and a Claimant cannot retract agreement and revert to the Standard Procedure to get round a S32 bar if a grievance under the Modified Procedure fails to do so.

Don't forget that the CIPP has a downloadable webcast on the topic of equal treatment which covers the Equality Act 2010 and equal pay.  This webcast is available from 24 May until August 2011 and can be purchased online for just £20 + VAT for CIPP members.